No Rehaif Relief via 2255, but 2241 Relief Available

In re McNeill: In 2009, McNeill was convicted at trial of being a felon in possession of a firearm. After an unsuccessful 2255 motion, McNeill sought permission, and was denied, permission to file a second or successive petition on multiple occasions. In 2020, McNeill sought that permission again from the Fourth Circuit in the wake of the Supreme Court’s decision in Rehaif. At issue was whether Rehaif’s new rule that the Government must prove that a felon-in-possession defendant must know of his status as a felon was the type of retroactive rule that applied in 2255 proceedings.

The Fourth Circuit ultimately concluded that it was not. Rehaif dealt with a question of statutory interpretation, not constitutional law (the opinion never mentions the Constitution, the court notes). While it has “constitutional implications,” in that it adds an element of the offense that the Government is required to prove beyond a reasonable doubt, that does not make it a constitutional rule. The court analogized to the Supreme Court’s 1995 decision in Bailey, which narrowed the definition of “use” in 18 USC 924(c), which the Fourth Circuit had held did not create a constitutional rule by adding to the proof needed by the Government to secure a conviction. Because Rehaif did not announce a new constitutional rule, it could not support relief under section 2255. However, the court held that such relief was available under 28 USC 2241, the more ancient version of habeas corpus. That was because Rehaif upset settled law from the time of McNeill’s conviction, changed the law such that his conduct “is deemed not to be criminal,” and did not announce a rule of constitutional law (thus prohibiting 2255 relief).